Canadian University Association Surrenders Completely By Withdrawing From Copyright Hearings

from the laying-down-your-arms dept

On Monday, I wrote about a troubling situation for Canadian universities that is coming to head. Their association, the AUCC, has negotiated a very bad copyright clearance deal with the collection society Access Copyright, which has been pursuing a hefty tariff from the Copyright Board. There was already tremendous pressure on AUCC members to sign on quickly, with a bizarre two-part deadline to avoid retroactive fees, but now things have gotten even worse. The AUCC has announced that it has withdrawn its opposition to the proposed tariff before the Copyright Board—meaning anyone who doesn't sign on to the model agreement will automatically face even higher fees and worse terms under the ridiculous and unrealistic requested tariff that kicked off the negotiations. As professor Ariel Katz points out, this is the opposite of what you'd expect:

If the AUCC thought that it would be in the universities’ best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.

The only hope is for universities to back out of the AUCC agreement and continue fighting the tariff on their own—but that might be easier said than done, and the Copyright Board could easily rubber stamp the tariff as unopposed. Katz continues:

What’s even worse is that–setting aside the issue of cost–it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not “objectors”, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC’s withdrawal of its objection as binding on its members. Unfortunately, the AUCC’s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC’s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.

The AUCC has really thrown its members under the bus here. From the very beginning of this whole mess, they have been in the position to make an argument for much lower tariffs on the basis of their fair dealing rights—and that position has only gotten stronger as Canada moves closer to its copyright reform bill. And yet, somehow, not only did they strike a terrible deal, they're now giving Access Copyright free reign to set tariffs at the board. Howard Knopf raises several important questions about the situation, and the last and most optimistic item on his list is perhaps the most important:

If this development is a sour “lemon” to some institutions (e.g. the three dozen or so “opt-outs” and others that may not be satisfied with result), what options are open to them to turn can it into lemonade – maybe even “spiked lemonade”? This may well be as possibility if the AUCC’s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don’t want to sign the model license and may therefore decide to fight to the finish.

In the U.S., large universities have their own copyright clearance offices that bypass the collection societies. With Canadian universities stuck choosing between a bad deal and a worse deal, now is the time for them to bring a vigorous argument to the Copyright Board and establish a new way of doing things—one that leverages their substantial fair dealing rights under the law to reduce the cost to schools which, ultimately, is a cost to students, taxpayers and all of Canada. It's disappointing (and astonishing) that AUCC not only won't be backing them if they do, but has apparently made things even harder for them. Nevertheless, the AUCC's withdrawal has cleared the playing field for a counterattack from the universities that could be highly effective with the right strategy. It won't be easy, but it's a fight that needs to be fought.

The most obvious question...

So where can those that oppose this stranglehold on innovation intervene? It's obvious that a horrid situation like Canada's will trickle down and there should be concerns expressed by others who don't see the need for this legislation.

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It always amazed me how we mock the French for their cowardice and military incompetence. How can two wars completely overshadow Napoleon's legacy?

As for Canada's insignificance, need I remind you that our curling team recently won an important tournament.

When I was in school (Before it changed it's name to access copyright) they charged a few cents per page to ensure that all rights were cleared. In practice, we could photocopy whatever the hell we wanted, and it was fine, because we paid the fee to make sure any potential problems would go away. And their might be 3 textbooks that all cover one part really well, and other parts were just ok, so profs could mix and match, giving us just the best, without wasting money on 3 textbooks when one reader would do.

During my first year, a photocopied reader was around $10. by the end of 4th year, it was around $40-$60. The content hadn't changed, we weren't getting 4 to 6 times more value from the textbook. I would be curious to find out if the authors were receiving 4 to 6 times as much in their royalty cheques, because some of my profs were contributors to these readers, and they didn't say they were getting any extra.

In first year, everyone just bought the book, because its easy and cheap enough, it's not worth it to spend an hour in a copy shop to save $2.

By 4th year, I think a psychologacal barrier was reached; spending $40 on B@W photocopies felt like a rip off, its now worth the time to just make it ourself for cheaper. Most students would just buy one reader as a group, then go to a local copy shop, and copy the whole thing for far, far less than the school wanted for it, avoiding the copyright clearance racket entirely.

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You weren't avoiding copyright, Kyle, you were violating it. Students qualify for fair dealing rights as private researchers under the Copyright Act, but copying an entire copyrighted work so you don't have to pay for it would more likely be judged as a copyright infringement rather than fair dealing.

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Americans would all be eating meat with the fork in their left hand piling on the mash potatoes if it hadn't been for the French. Read some history. Jeese, doesn't anyone finish school any more?

I think perhaps you should read my comment again, and a bit slower this time... I suspect you didn't make it to the part where I said "anyone who believes" in France's cowardice for anything beyond the occasional joke "is an idiot"

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Can we be sure he's not a 'Canadian Troll'? Or that he's a he? He He, eH?

Canada is awesome. The people who aren't mixed up in the politics of any region on earth are generally pretty good people in my experience anyway. Not saying everyone. Or all politics, either.. but it does have a long reach on the peoples of this planet. Like any other planet.

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Yes, No, I'm no troll. I am just sticking up for the friends up north who have been very accommodating on my many journeys through their country. They even allowed me to hitch-hike through their country on a journey to Alaska from Florida. Take Off, eH? >:-D

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Yeh cos it's all about you.

I work on a Canadian University Campus and we're already starting to see real discontent in student bodies across the country.

The only thing idiotic approaches like this do is drive more people to pirate. Nothing in new in what I just said it's just tiresome having to keep beating the same drum in an apparently deaf world! I don't know how Mike hasn't gone insane by now!

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Speak for yourself. Having several friends just across the very nearby border, as well as several Canadian nurses at the clinic I attend for treatments, I rather like knowing what's going on with our neighbor. Just because you're an egotistical twat doesn't mean the rest of us are.

Re: Take Off

Take off, eh? Your not even from America. Comments like that have obviously evolved from a long line of ignorant buffoons from somewhere under some septic system OR the water you are drinking has unfortunately been contaminated by some fracking activity.. OR you are obviously high on your own aroma.. OR [CENSORED] >:-D

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When selecting textbooks for the elementary and high school levels, teachers are given a list of board-approved materials, they are not allowed to select materials that do not appear on this list.

There are a number of barriers to entry, including review costs, so getting approval is something that takes effort and financial resources.

Open materials, being non-profit and not for sale, don't have these financial resources needed to break in. No one can just snap their fingers and overhaul the whole system and use non-approved material. Its going to take something big for changes to happen quickly. But a gradual transition to open materials might be possible, but wont be quick.

Wow.

So, the natural progression of this, is that we assume people are always going to do something bad with all things at all times, so we must levy a "bad citizen tax" (call it what you will, honestly) on those items.